I've been reading everything I can on the Supreme Court's Obamacare ruling, and it seems to amount mostly to cries of foul from conservatives and a great deal of gloating by liberals. About the best analysis I've seen so far is by Larry Slolum at the Legal Theory Blog, who says it represents a "gestalt shift" in constitutional law rather than the "tectonic shift" invalidating the mandate (instead of merely renaming it a tax) would have been:
But there is an alternative explanation. There is an alternative gestalt concerning the New Deal Settlement. For many years, some legal scholars had advanced an alternative reading of the key cases uphold New Deal legislation. On this alternative reading, the New Deal decisions were seen as representing the high water mark of federal power. Although the New Deal represented a massive expansion of the role of the federal government, it actually left a huge amount of legislative power to the states. On the alternative gestalt, the power of the federal government is limited to the enumerated powers in Section Eight of Article One, plus the New Deal additions. These are huge, but not plenary and unlimited.
Today, it became clear that four of the Supreme Court's nine justices reject the academic consensus. As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito:
"In our view, the entire Act before us is invalid in its entirety."
The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court. And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt.
We are only minutes into a long process of digesting the Health Care Decision. But in my opinion, one thing is clear. Things are now "up for grabs" in a way that no one anticipated when the saga of the constitutional challenge to the Affordable Care Act began.
If he's right, the debate that's begun in the country over how much power the federal government should have is going on at the Supreme Court level, too. And if his optimism is justified, it is by no means settled that the acculumation of federal power will continue.
